Central Administrative Tribunal - Bangalore
Shekar K vs M/O Labour on 18 July, 2019
1 OA.No.170/00477/2017/CAT/Bangalore Bench
CENTRAL ADMINISTRATIVE TRIBUNAL
BANGALORE BENCH
ORIGINAL APPLICATION NO.170/00477/2017
DATED THIS THE 18th DAY OF JULY, 2019
HON'BLE DR.K.B.SURESH, JUDICIAL MEMBER
HON'BLE SHRI C.V.SANKAR, ADMINISTRATIVE MEMBER
1. Shekar K
S/o Late C.Krishnan
Aged 48 years
Residing at No.8, 5th Cross
Brindavan Nagar, Mathikere
Bengaluru - 560054.
2. Mahesh Chand Bansal
S/o Suresh Chand Bansal
Aged 49 years
Residing at No.286, 1st Floor
Rajhans Niwas
Gangamma Temple Area
Jalahalli Post, Bengaluru-560 013.
3. Amalendra Kumar Rai
S/o Late Devendra Prasad Rai
Aged 53 years
Residing at #429, B Block
Pyramid Mahika, Jakkur Road
Yelahanka, Bengaluru-560064.
4. Anil P Cherian
S/o Late PS Cherian
Aged 45 years
Residing at Flat No.207, Block-1
Radiant Jasmine Garden Apartment
Shivanahalli Jakkur Road
Yelahanka, Bengaluru-560064.
5. Y Urukundappa
S/o Late Y Eranna
Aged 54 years
Residing at H.No.5/201
Kilchinpet, Adoni (Post)
Kurnool (Dist) - 518 301.
6. H.Nagaraja
S/o H.Virupaksha Setty
Aged 45 years
2 OA.No.170/00477/2017/CAT/Bangalore Bench
Residing at No.15
NS Anand County Layout
1st Main, 1st Cross
Kammagondanahalli
Bengaluru-560 015.
7. Purna Chandra Pradhan
S/o Balaram Pradhan
Aged 55 years
Residing at No.203
3rd Floor, 1st Main
Vinayak Nagar
Baglur Cross, Yelahanka
Bengaluru-560 063.
8. Raghu L
S/o. Sri Lakkanna
Aged 43 years
Residing at # 211, Jalarupa Nilaya
2nd Cross, BSK 5th Stage
Behind Mantri Alpyne
Bengaluru-560061.
9. KLNS Sarma
S/o Late MKL Sarma
Aged 52 years
Residing at No.10
Between - Mosque & Samuel Public School
Halehalli, Behind - GC College
KR Puram Post, Bengaluru-36.
10. Sanjay Kumar
S/o Late Tara Chand
Aged 50 years
Residing at No.102, 2nd Floor, 8th Main
Vinayaka Layout, Krishna Vihar
Alpine Eco Apartments Road
Doddanekkundi New Extn.
Marathahalli Post, Bengaluru-37.
11. Parasaram Ganesh
S/o Sri P.Sathya Murthy
Aged 50 years
Residing at No.305
Vibha Elite Apartments
PWD Road, Near - SBI, Akash Nagar
B Narayanapura, Bengaluru-560016. ....Applicants
(By Advocate Shri M.Subramanya Bhat)
3 OA.No.170/00477/2017/CAT/Bangalore Bench
Vs.
1. The Union of India
Ministry of Labour and Employment
Shrama Sadan, New Delhi-110 011
By the Secretary.
2. Central Provident Fund Commissioner
Employees Provident Fund Organisation
Ministry of Labour and Employment
Head Office
Bhavishya Nidhi Bhavan
14, Bhikaji Cama Place
New Delhi-66.
3. Regional Provident Fund Commissioner-II
EPF Organisation, Regional Office
No.62, 3rd Cross
Industrial Suburb, Yashwantpur
2nd Stage, Peenya
Bengaluru-560 022.
4. Assistant Provident Fund Commissioner (Adm)
Regional Office, No.36, Lakshmi Complex
NH-4, K.R.Puram
Bengaluru-560036.
5. Regional Provident Fund Commissioner-II (OIC)
EPF Organisation, Regional Office
Saath Kachery Road
Raichur -584 101.
6. Assistant Provident Fund Commissioner (Admn)
Regional Office, Bommasandra
"Annapoorneshwari Complex"
Survey No.37/1, 6th Main
Singasandra, Hosur Main Road
Bengaluru-560 068. ...Respondents
(By Advocate Sri.K.S.Venkataramana)
ORDER
(PER HON'BLE SHRI C.V.SANKAR, MEMBER (ADMN) The factual matrix of the case is as follows:
The applicants, who are ex-servicemen holding posts below Commissioned Officers and retired before attaining 55 years of age, were appointed as Social Security 4 OA.No.170/00477/2017/CAT/Bangalore Bench Assistants(Civilian Posts) in the Employees' Provident Fund Organisation(EPFO) (Annexure-A1). A few of the applicants have retired from the Defence Forces prior to 1.1.2006 and are reemployed after 1.1.2006.
2. The applicants submit that on their reemployment they were entitled for pay fixation by considering their pre-retirement pay in the defence forces as per the OM dtd.31.7.1986. But their pay was fixed at the entry pay (i.e. minimum of the pay scales) attached to the respective posts whereas some retired defence forces personnel who were reemployed in other establishments/organisations viz., Nationalised Banks, RBI, LIC as well as Income Tax Department etc., were granted the benefit of pay protection inasmuch as their pay on reemployment was fixed by protecting their last drawn pay and DA drawn in the defence forces, which is based on the DoPT OM dtd.5.4.2010 vide orders/circulars issued by IBA, RBI, LIC and Income Tax Department dtd.1.2.2014, 21.5.1988, 6.1.2017 & 3.7.2014 respectively (Annexure-A3 series). They have also produced consequential orders passed by the Nationalised Banks and Income Tax Department granting pay protection/re- fixation benefits to the ex-servicemen(Annexure-A4 series). This is apparently done as a premium to the meritorious, impeccable and selfless service rendered by them in the defence forces and also to see that on their reemployment to a lower post than the one held by them in the defence service, they get adequate pay so as to ensure that their pay does not fall below that which they drew in the defence forces and thereby enable them to lead a fairly comfortable life. Since their pay was neither protected nor was appropriately fixed, the applicants submitted representations which were considered by the competent authorities who passed individual pay fixation orders by bringing their pay at par with the last drawn pay in the defence forces by virtue of OM dtd.5.4.2010(Annexure-A6 series).
5 OA.No.170/00477/2017/CAT/Bangalore Bench
3. The applicants further submit that the Additional Central PF Commissioner (HQ) (HRM) issued a communication dtd.26.7.2017(Annexure-A7) to all Additional Central PF Commissioner (Zones) and all RPFC in charge of Regional Offices stating that the retired and reemployed defence staff who were holding posts below commissioned officer rank are not entitled for pay protection in view of paras 4(b)(i), 4(d)(i) and para 3(v) of DOPT OM dtd.5.4.2010 as in their case, the entire pension drawn by them would be ignored i.e no deduction is to be made from the initial pay fixed in reemployment. The above communication is issued in the wake of clarifications sought by the regional officers in relation to the requests made by the reemployed ex-servicemen for pay refixation. It is silent regarding the re-fixation already done to the ex-servicemen like the applicants nor does it contain any direction to withdraw such benefit already extended. Based on the said communication, the Regional Provident Commissioners of the respective regions have issued orders dtd.18.8.2017, 23.8.2017 & 24.8.2017(Annexure-A8 series) withdrawing the benefit of re-fixation of pay and refixing the same to their disadvantage. In some cases, it is also notified that the alleged excess amount paid to them on account of refixation of pay would be recovered. All the applicants were reemployed to the posts carrying pay scales/pay structure lower than the one which they were drawing in the Defence Forces. As per DOPT OM dd.6.2.2014(Annexure- A10), if the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment, and intention to recover such excess payments. Reasons for the decision should be clearly conveyed to enable the employee to represent against the same. The applicants submit that before issuing the impugned orders, they have not been afforded with an opportunity of hearing 6 OA.No.170/00477/2017/CAT/Bangalore Bench and the same are issued without assigning any reasons for revision of pay and have been issued solely based on the circular dtd.26.7.2017 issued by the Head Office in connection with the pending request for pay fixation of re-employed pensioners, where no accrued rights in favour of any reemployed persons were defeated. In fact, the Dept. of Financial Services, Min. of Finance vide letter dtd.17.2.2014 has framed guidelines in the light of the OM dtd.5.4.2010 for pay protection of reemployed ex-servicemen in RBI, Public Financial Institutions, Public Sector Insurance Companies, GIPSA, IRDA and PFRDA. LIC has also issued a circular on 6.1.2017 conferring similar benefits to the reemployed ex-servicemen. Therefore, there is no rationale for the respondents to take away the accrued rights of the applicants. The impugned orders have also resulted in infringement of right to life and livelihood of the applicants guaranteed under Article 21 of the Constitution of India. Consequent to the above, the monthly pay of the applicants have drastically been reduced by more than 50% in some cases whereby it caused untold hardship and misery. The benefit was extended to the applicant not on account of any misrepresentation or false claim but it is made available to them on the basis of OM dtd.5.4.2010. The respondents are also contemplating to effect recoveries from them in the pretext of excess payment. Aggrieved by the same, they filed the present OA seeking the following relief:
a. Issue a writ of certiorari or any other appropriate writ, order or direction quashing the orders bearing No.KN/PF/PY/EXSM/2017-18/292, dtd.18.8.2017; No.KN/PF/PY/RO/KRP/ADM Pay Fix/448/2017-18/292, dtd.23.8.2017; No.ZO/HBL/RO/RCH/2017-18/93, dtd.23.8.2017 and No.RO- BMS/ADM/2017-18/596, dtd.24.8.2017, passed by respondents No. 3 to 6, which are produced and marked as Annexures-A8 series, as the same is violative of Articles 14, 16 and 21 of the Constitution of India besides being violative of principles of natural justice;
b. Issue of writ of mandamus or any other appropriate writ, order or direction, directing the respondents to continue the benefits of pay re- fixation to the applicants granted as per the orders at Annexure-A6 series,
7 OA.No.170/00477/2017/CAT/Bangalore Bench with effect from dates of their initial appointment and restrain them from reducing and revising the pay to the disadvantage of the applicants, to meet the ends of justice;
c. Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to refund the amount if any, recovered from the applicants pursuant to the impugned orders, along with interest at the rate of 10% per annum, to meet the ends of justice.
4. The respondents, on the other hand, have submitted in their reply statement that the applicants after serving with the Defence Forces have retired from services on completion of tenure before attaining the age of 55 years. They have been appointed on selection to the post of Social Security Assistant in PB-1 with Grade Pay of Rs.2400/- with the respondent organisation. The applicants on re- employment have raised the issue that their pay have not been protected and requested for pay protection inviting the attention to OM dtd.5.4.2010 of DoPT. The respondents escalated the issue to higher authorities and acceded to the request of applicants and resorted to grant of pay protection vide order dtd.28.7.2014. While issuing pay fixations orders, the respondents have categorically mentioned that 'revision of pay and arrears/recovery thereon are subject to review and adjustment by audit as also subject to further clarification issued hereinafter by Government of India'. Accordingly, they have refixed the pay of the applicants. While so, the 2 nd respondent has referred the issue to Min. of Labour & Employment vide letter dtd.28.12.2015 seeking clarification with reference to para 3(v) of DoPT OM dtd.5.4.2010 i.e. whether the said provision is also applicable in respect of such pensioners whose pension is fully ignored while fixation of pay to such re-employed pensioners. Then the 1st respondent vide letter dtd.27.11.2016 has forwarded the DoPT OM dtd.9.11.2016, 4.7.2016(Annexure-R1) stating that the initial pay of re- employed pensioners is to be fixed in terms of DoPT OM dtd.31.7.1986 as amended from time to time and para 4(d)(i) of CCS(Fixation of Pay of re-employed 8 OA.No.170/00477/2017/CAT/Bangalore Bench Pensioners) Orders, 1986, as amended vide DoPT OM dtd. 5.4.2010 provided that in case of ex-servicemen who held post below Commissioned Officer rank in the Defence Forces and in the case of civilians who held post below Gr.A posts at the time of their retirement before 55 years of age, the entire pension and pension equivalent of retirement benefits shall be ignored i.e. no deduction on this count is to be made from the initial pay fixed on re-employment. Also in terms of 4(a) and para 4(b)(i) of CCS (Fixation of pay of re-employed pensioners) Orders, 1986, as amended vide DoPT OM dtd.5.4.2010, "the initial pay on re-employment of such pensioners shall be fixed as per the entry pay in the revised pay structure of the reemployed post applicable in the case of Direct recruits appointed on or after 1.1.2006" as notified vide Section II, Part-A of First Schedule to CCS(Revised Pay) Rules, 2008. These instructions do not provide for protection of last pay drawn before retirement, in such cases. The 2 nd respondent has taken note of the fact that Ex-servicemen working with organisation have raised the plea of pay protection by misinterpreting the clarification issued under para 3(v) of the DoPT OM dtd.5.4.2010 pertaining to fixation of pay of personnel/officers who retired prior to 1.1.2006 and who have been re-employed after 1.1.2006 and it is applicable in case of reemployed commissioned officers where the entire pay and pensionary benefits are not ignored for pay fixation. These are not applicable in case of re-employed ex- servicemen who had held posts below Commissioned Officer rank in Defence Forces, retiring before attaining the age of 55 years and appointed on re- employment basis in civilian posts. Their initial pay fixation will be done in terms of para 4(b)(i) of CCS(Fixation of pay of reemployed pensioners orders) 1986 as amended vide OM dd.5.4.2010 and in addition they are permitted to draw separately any pension sanctioned and to retain any other form of retirement 9 OA.No.170/00477/2017/CAT/Bangalore Bench benefits. Accordingly, 2nd respondent has issued instructions vide communication dtd.26.7.2017(Annexure-R2) to the field offices to state that Social Security Assistants who were earlier retired from the defence services and who were not holding the posts of Commissioned Officer rank at the time of retirement, will not be eligible for protection of pay in accordance with the instructions issued by DoPT OM dtd.5.4.2010 and in particular para 4(b)(i) of the said OM and hence necessitates review of fixation of pay.
5. The respondents submit that they have granted pay protection to the applicants due to inadvertent error in interpreting and implementing OM dtd.5.4.2010 and the mistake was rectified by re-fixation of pay in consonance with the DoPT guidelines dtd.4.7.2016. The applicants being ex-servicemen are in receipt of pension from the Defence forces and on their re-employment with the respondent organisation are governed by the rules/orders of Central Government as also of statutory body issued from time to time. As per Rule 19 of the CCS(Pension) Rules, 1972, the ex- servicemen on re-employment in a civil service or post have the option for counting of his military service and retention of pay/pay protection, availing of enhanced pension/pensionary benefits on superannuation/cessation from service and it is only on meeting the mandatory requirement, the applicants are entitled for pay protection and eventual enhanced pensionary benefits. In the instant case, the applicants have failed to exercise option/cease to draw his pension/refund the pensionary benefits and had indulged in raising the claim of pay protection contrary to mandatory requirement and spirit of pension policy. The applicants for having failed to adhere to Rule 19 of CCS(Pension) Rules, 1972 are not entitled for pay protection. The CAT, Hyderabad Bench in the case of T.T.M.Tharakan Vs. The Director General, ESIC has observed that 'the pay of Ex-servicemen who opted for combined service 10 OA.No.170/00477/2017/CAT/Bangalore Bench for pension under Rule 19 of CCS(Pension) Rules, shall be refixed from the date of re-employment in the manner given in para 15 of the Dept. OM dtd.31.7.86, ibid. However, this refixation will be done only after the pensionary benefits have been refunded in full as per provision of Rule 19 ibid of CCS(Pension) Rules, 1972.
6. The respondents further submit that before making pay fixation orders by administrative authorities to the ex-servicemen/pensioners, due care is taken to look into the aspect of hardship caused. In case of any hardship, the ex- servicemen/pensioner are granted increment to meet the hardship and to ensure financial stability. The grant of any financial advantage to ex-servicemen/pensioner is permissible only when the claimants establish the existence of hardship and in the event of pay drawn by the claimants inclusive of other amount i.e pension/monetary benefits are more than last pay drawn, then such cases fall out the pale of pay protection. It is evident that all applicants are in receipt of present pay and drawing pension and aggregate of these components is more than the last pay drawn by them. Hence, the claim of the applicants for restoration of pay protection on the grounds of hardship are contrary to the rules and also against the ratio cited and falls to ground. The applicants have referred to DOPT OM dtd.5.4.2010 and pleaded for pay protection with the apprehension that re-employed personnel of defence forces are also entitled for the said benefit. As the applicants were pressing hard for pay protection and supported their plea by referring to similar cases/re-employed ex-servicemen of Income Tax department, Public Sector Banks etc., an inadvertent error has crept in the minds of the administration and heeded to accord of pay protection to the applicants vide order dtd.28.7.2014. Hence, the respondents in exercise of inherent powers has resorted to issue re-fixation of pay orders dtd.23.8.2017 as a corrective measure which is rational and justified. The 11 OA.No.170/00477/2017/CAT/Bangalore Bench applicants have referred to OM dtd.6.2.2014 and sought for the airing out the reasons for refixation/recovery by the respondents without looking subsequent guidelines/OMs issued by the DOPT. The DOPT vide OM dtd.2.3.2016(Annexure- R3) has issued guidelines for recovery of wrongful/excess payment in adherence to ratio laid down by the Hon'ble Supreme Court in State of Punjab vs.Rafiq Masih(White Washer) in CA No.11527/2014. The judiciary has held that in cases where no rights of a party are affected then there raises no occasion for grant of opportunity of hearing and drawing the attention of principles of natural justice to the authoritties is of little avail. It is within the competence of administrative jurists that issues relating to fixation of pay to ex-servicemen/pensioners falls under the domain of administrative policies/functions of executive and it is only on serious accusation of malafide /irrationality against the opponents and establishment of arbitrariness by the claimants, there arise the occasion of judicial intervention. The applicants have failed to bring in about any such acts of inconsistencies. The applicants are in receipt of pay and pensionary benefits as per their entitlement/defence service rules as also initial pay on re-employment were fixed according to provisions of extant pay fixation rules and as such the claim of the appilcants is frivolous and untenable in the eyes of law.
7. The respondents further submit that the issue of payment of Dearness Relief on the pension to the ex-servicemen who were reemployed in civilian posts and also in receipt of Dearness Allowance in the present employment has come up for hearing before the Hon'ble Supreme Court in the case of UOI vs. G.Vasudevan Pillay where it is held that 'the ex-servicemen on their re-employment in a civil post will not be allowed Dearness Relief on their pensions. The issue is further clarified vide circular dtd.12.5.2015(Annexure-R4) issued by the Principal Controller of Defence 12 OA.No.170/00477/2017/CAT/Bangalore Bench Accounts(Pension). The respondents have cited the cases of Hon'ble Supreme Court in Appeal (Civil)6872-6875/1994 in Director General, ESI vs. M.P.John and Civil Appeal No.9873/2013 in U.T.Chandigarh & others vs.Gurcharan Singh, CAT, Mumbai Bench in OA.No.401/2013 B.N.Chauhan v. UOI, Hon'ble High Court of Kerala in Sasidharan vs. RBI , Hon'ble High Court of Calcutta in WPST No.261/2009, Hon'ble High Court of Delhi in the case of Bank of Baroda in WP(C)No.2546/2011, Vinod Kulshrestha vs. UOI and in Balhara Vs. UOI in support of their contention. Therefore, the respondents submit that the OA being devoid of merits is liable to be dismissed.
8. The applicants have filed rejoinder reiterating the submission already made in the OA and stated that the respondents have construed the refixation of pay granted to them as protection of pay without understanding the concept of pay protection. The Govt. of India has formulated rules that provide for initial pay-fixation of reemployed ex-servicemen since the year 1958. The Gazette Notification dtd.29.8.2008 (Annexure-A13 series) issued by Min. of Finance consequent to implementation of 6th CPC indicates the Entry Pay in the revised pay structure for direct recruits appointed on or after 1.1.2006. All the applicants are reemployed under the 6 th CPC pay scales in PB-1 carrying GP Rs.2400 applicable to the post of Social Security Assistant. They were drawing GP Rs.4200 and Rs.2800 in the Armed Forces in PB- 2 & PB-1 respectively. As per the statement of the respondents, if their pay was protected, then their pay should have been fixed by protecting the pay in Pay Band along with the corresponding Grade Pay of Rs.4200 or Rs.2800 i.e they should have been allowed the same pay scale which they had drawn in the armed forces at the time of retirement. The basic pay of applicants 3,5,9 & 11 on reemployment was fixed in accordance with Rule 3(v) of OM dtd.5.4.2010 at the stage as the notional 13 OA.No.170/00477/2017/CAT/Bangalore Bench last basic pay before retirement so arrived at and they have been granted Grade Pay of re-employed post only(Annexure-A14). Further the pay of reemployed pensioners/military pensioners is to be fixed in accordance with Rule 7 of CCS(Revised Pay) Rules 2008 and not under Rule 8 which is applicable to Direct Recruits, as per the DoPT OM dtd.11.11.2008(Annexure-A15) which is an explicit decision of the Hon'ble President of India. An ex-serviceman cannot be equated with a direct recruit due to various factors like degree of skills etc., and their pay is to be refixed at a level which is not below what they drew in the Armed Forces. Furthermore, as the legislation is itself committed to provide benefits to the ex- servicemen, there is no rationale behind treating them at par with direct recruits in the matter of pay fixation. The fixation of pay of reemployed pensioners including military pensioners is governed by CCS(Fixation of Pay of Re-employed Pensioners) Orders, 1986 issued by DoPT OM dtd.31.7.1986 which have been suitably amended vide DoPT OM dtd.5.4.2010 on the implementation of 6 th CPC while other provisions continue to be in force like Rule 3(2)(ix) is still in force and does not stand amended. The intention behind Rule 3(2)(ix) is to ensure that the ex- serviceman on reemployment does not draw pay lesser than what he drew in Armed Forces. The Ministry of Defence vide letter dtd.15.2.1993(Annexure-A16) has clarified that "in all cases where the entire amount of pension is ignored, the initial pay on re-employment has to be fixed at the minimum of the scale of the re- employed post and therefore there is no necessity of indicating the pay drawn by the individual from the date of enrolment to the date of discharge, and only particulars of Last Pay drawn will serve the purpose. In other words, where the entire amount of pension is ignored, furnishing the Last Pay drawn particulars of Military Pensioner will suffice for the purpose of fixation of pay on reemployment".
14 OA.No.170/00477/2017/CAT/Bangalore Bench From the information sought under RTI, it is clear that the respondents do not possess any definition of pay protection or pay fixation, nor have they had the inclination to seek clarification from higher authorities on the same, more particularly after the issue of OM dtd.4.7.2016 and caused misinterpretation resulting in the issue of wrong and illegal order dtd.26.7.2017. The 3 rd respondent vide letter dtd.13.6.2017(Annexure-A18) has stated that 'pay protection has not been granted' whereby the stance of the respondents is clearly in contradiction that they have revised the pay of the applicants on the grounds of pay protection.
9. The applicants submit that the statement of the respondents that the failure on the part of the applicants to adhere to Rule 19 of CCS(Pension) Rules, 1972 and so are not entitled for pay protection and hence they were justified in disentitling the pay protection/refixation of pay of applicants at the entry level in a civil post, is untenable as the impugned orders have not been issued on the ground of non- adherence of Rule 19 of CCS(Pension) Rules, 1972 but issued in accordance with Head Office order dtd.26.7.2017. The statement of the respondents that grant of any financial advantage to ex-servicemen/pensioner is permissible only when the claimants establish the existence of hardship and in the event of pay drawn by the claimants inclusive of other amount, i.e. pension/monetary benefits are more than the last pay drawn, then such cases fall out of the pale of pay protection, is not accepted as the applicants' pay is fixed at the minimum of pay scale and at the entry pay of the scale of pay prescribed for the post in accordance with Rule 4(b)(i) of the 2010 orders. The pay so fixed is much lesser than the last drawn pay(pre- retirement pay). The pension and pensionary benefits have been ignored while fixing the pay in accordance with Rule 4(d)(i). Hence, there definitely is a hardship involved. The Hon'ble Apex Court in Director General of Posts & Anr vs. 15 OA.No.170/00477/2017/CAT/Bangalore Bench B.Ravindran & ors. has determined the hardship aspect in the case of personnel below commissioned officer rank(PBOR) retiring below 55 years of age and whose pay is fixed in the reemployed post, by stating that as per the relevant orders at that time, only the pay is to be considered and not the pay plus pension, since pension is fully ignored, to see if there is a hardship involved. The aspect of undue hardship finds place in all the orders from 1958 to 1983 and corresponding entries in Articles 510 to 526 of Civil Service Regulation (CSR). The 1986 orders and 2010 orders do not eliminate the aspect of undue hardship. Rule 4(b)(i) of 1986 orders states that 'in all cases where the pension is fully ignored, the intial pay on reemployment shall be fixed as per entry pay in the revised pay structure of the reemployed post applicable in the case of direct recruits appointed on or after 1.1.2006 as notified vide Section II, Part A of First Schedule to CCS(RP) Rules, 2008'. The meaning of this sub-rule is that in the case of PBORs whose pension is fully ignored, the pay shall be fixed 'as per entry pay' in the revised pay structure of the reemployed post and not 'at entry pay'. It actually states that the pay is to be fixed within the pay structure of the post as per entry pay and does not confer the right to fix the pay at entry pay, which is applicable in the case of direct recruits only. In the case of ex- servicemen, the entry pay cannot be the same as that of direct recruits, but rather, it shall be the pre-retirement pay which constitutes the sum of all the elements of pay as defined under Rule 3(2)(ix). It does not amount to pay protection, as alleged by the respondents. Rule 4(b) (ii) states that 'in cases where the entire pension and pensionary benefits are not ignored for pay fixation, the initial basic pay on re- employment shall be fixed at the same stage as the last basic pay drawn before retirement. However, he shall be granted the grade pay of the re-employed post. The maximum basic pay cannot exceed the grade pay of the re-employed post plus 16 OA.No.170/00477/2017/CAT/Bangalore Bench pay in the pay band of Rs.67000, i.e. the maximum of the pay band PB-4. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed'. This rule clearly indicates that in the case of Commissioned Officers/Group 'A' officers who are reemployed, their pay is fixed at the same last stage as the last basic pay before retirement. If a Colonel 's last drawn pay is Rs.61700 in PB-4 (i.e. Pay in PB is Rs.53000 and GP Rs.8700) and on his re-employment in the PB-3, his pay will be fixed at the same last drawn basic pay i.e. Rs.61700, but he will be granted the GP Rs.7600 which is prescribed for the re-employed post. It is only after fixing the pay at the same last basic pay, the non-ignorable part of pension is reduced from the pay so fixed. However, he shall draw his increments and allowances, viz. DA, HRA etc. on his pay fixed at Rs.61700 and not the pay arrived at after reducing the non-ignorable part of pension. Such reemployed pensioners shall continue to draw pension and all other benefits entitled to him for his past service in the defence force. If the pay of commissioned officers fixed at the same stage as the last basic pay drawn before retirement is not pay protection, then the fixation of pay at the pre-retirement pay in the case of the applicants, who are PBORs, also cannot be treated as pay protection as contended by the respondents. Their contention that the ex-servicemen's pay is to be fixed at the minimum and are not entitled to pay protection if they are drawing pension for their previous service is not correct.
10. The applicants further submit that the competent authority has issued a detailed letter dtd.13.7.2015(Annexure-A20) describing the methodology adopted and the interpretations of the rules in the matter of fixation of pay of ex-servicemen. The respondents have relied upon DoPT OM dtd.4.7.2016 which stated in para 2 that 'these instructions do no provide for protection of last pay drawn before retirment in 17 OA.No.170/00477/2017/CAT/Bangalore Bench such cases'. The said OM has wrongly interpreted the 2010 orders, which inter-alia states that 'no protection of the scales of pay/pay structure of the post held by them prior to retirement shall be given'. Vide para 4 of the OM, DoPT has requested the Secretaries of Dept. of Posts, Dept. of Revenue, Min. of Labour & Employment and Chairman of the Railway Board to look into the matter and give reasons for higher pay fixation in contradiction to the 2010 orders and furnish details only and does not specifically direct the respondents to revise the pay. Therefore, the reliance of the respondents on OM dtd.4.7.2016 to revise the pay of the applicants is against the laid down rule provisions. The respondents have failed to take note of the Rule 3(v) of 2010 orders in the case of applicants who retired before 1.1.2006 and re- employed after 1.1.2006. The rule 3(v) clears states that in the case of personnel(PBOR) and in the case of officers(Commissioned Officers), their basic pay on re-employment will be fixed at the same stage as the notional last basic pay before retirement so arrived at, which shall be done with reference to the fitment table of the Defence Service Rank from which they had retired and the stage of basic pay at the time of retirement. This rule explicitly provides for fixation of pay for PBOR and the same view has been upheld by this Tribunal in OA.No.1093/2014 stating that Rule 3(v) does not differentiate between personnel below commissioned officers and commissioned officers rank ex-servicemen. Despite the same, Addl.Central Provident Fund Commissioner has issued circular dtd.26.7.2017. In DOPT ID Note dtd.22.7.2015(Annexure-A21) vide para 3 & 4, DOPT itself has clarified that para 3(v) of 2010 orders is equally applicable to all ranks of re- employed pensioners who retired prior to 1.1.2006 and reemployed on or after 1.1.2006. The respondents continue to harp upon the aspect of pay protection and have even made a preposterous statement that the applicants would have drawn 18 OA.No.170/00477/2017/CAT/Bangalore Bench pay which would be more than that drawn by any serving defence forces personnel, which has no basis since the applicants' pension is to be fully ignored in their case by virtue of having retired before attaining the age of 55 years and in the rank of personnel below commissioned officers in accordance with Rule 4(d)(i). Moreover, the respondents have violated the principles of natural justice by arbitrarily revising the pay of the applicants without even giving valid reasons for such actions. They have not given a show cause notice as mandated in DoPT OM dtd.6.2.2014 and have also not granted any opportunity to the applicants to express their stand in the matter. As regards the undertaking submitted by the applicants, they submit that such a procedure is a normal course of action in any administrative function, more so in the matter of pay fixation of any employee and the same cannot be depended upon.
11. The applicants submit that the pay protection granted to ex-servicemen reemployed in Public Sector Banks, LIC etc. are continuing to this very day. They say that they have been granted pay fixation in accordance with the extant rules and at no stage have been granted pay protection as alleged by the respondents. The recovery ordered by the respondents, as per their own submission, is for a period exceeding 5 years and any action to do so would cause untold miseries to the applicants. Moreover, it is against the settled law as laid down in Rafiq Masih's case by the Hon'ble Apex Court. The contention of the respondents that the applicants are holding Group B posts is incorrect. All the applicants were appointed to the post of Social Security Assistants except applicant No.2 who is holding the post of Junior Hindi Translator which are Group C posts and not a promotion post or Group B posts as stated by the respondents. This fact is supported through a letter dtd.23.1.2018(Annexure-A23). The applicants submit that they submitted 19 OA.No.170/00477/2017/CAT/Bangalore Bench representations as early as in Feb-2011 for re-fixation of pay after full knowledge of such refixation being carried out in other offices within the organisation and in the IT dept. As the authorities were not clear as to how the fixation of pay is to be carried out, they sought clarifications from the higher authorities. And then, the Head Office vide letter dtd.1.6.2012(Annexure-A24) had directed the 3 rd respondent to fix the pay in accordance with the 2010 orders. When the Head Office vide letter dtd.10.6.2015 directed all the offices of EPFO to review the matter, the 3 rd respondent vide letter dtd.13.7.2015 has given a detailed explanation of the rule provisions and how these have been applied in the refixation of pay of ex- serviceman. The above letter clearly indicates that the respondents have not granted the applicants' pay protection as alleged by them. The respondents have traversed matters extraneous to the OA by referring to certain judgments which are irrelevant to the present case and questioned the admissibility of DA on the applicants' present pay, post revision and the Dearness Relief on Pension which they are entitled to. These averments need no consideration and have to be brushed aside by this Tribunal on the grounds of traversing a matter outside the domain of the respondents and the OA.
12. We have heard the Learned Counsel for both the parties and perused the materials placed on record in detail. The respondents have filed written arguments to which the applicants have filed additional rejoinder. The applicants have also filed their written arguments note. The issue in this case relates mainly to the OM dtd.5.4.2010 Annexure-A7 wherein the DoPT has amended certain provisions of Central Civil Services(Fixation of Pay of Re-employed Pensioners) Orders, 1986. The relevant provisions being para-4(b)(i) and para 3(v) are quoted as follows:
Para 4(b)(i): In all cases where the pension is fully ignored, the initial pay 20 OA.No.170/00477/2017/CAT/Bangalore Bench on reemployment shall be fixed as per entry pay in the revised pay structure of the reemployed post applicable in the case of direct recruits appointed on or after 1.1.2006 as notified vide Section II, Part A of First Schedule to CCS (RP) Rules, 2008.
3. Apart from the above, it is also clarified as under:
(v) Fixation of pay of personnel/officers who retired prior to 1.1.2006 and who have been re-employed after 1.1.2006: In the case of personnel/officers who had retired prior to 1.1.2006 and who have been re-
employed after 1.1.2006, their pay on re-employment will be fixed by notionally arriving at their revised basic pay at the time of retirement as if they had retired under the revised pay structure. This will be done with reference to the fitment table of the Defence Service Rank/Civilian service post (as the case may be) from which they had retired and the stage of basic pay at the time of their retirement. Their basic pay on re-employment will be fixed at the same stage as the notional last basic pay before retirement so arrived at. However, they shall be granted the grade pay of the re-employed post. The maximum basic pay cannot exceed the grade pay of the re-employed post plus pay in the pay band of Rs.67000 i.e. the maximum of the pay band PB-4. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed.
13. The other issues relating to whether the last pay is to be protected, whether they are entitled for getting the pension and other retiral benefits and whether the whole pension has to be ignored etc. are all not in dispute. The only issue is whether in terms of para-3(v) of the said memorandum, the ex-servicemen who are below rank of commissioned officers will be eligible for being considered. An exactly similar case has been handled by this Tribunal in Hyderabad Bench Bench vide OA.No.37/2014 order dtd.9.1.2018 wherein the Tribunal vide para-15 & 16 has held as follows:
15. The respondents have rightly pointed out that Para 3 (v) of the OM relied upon by the applicants relates to those persons whose pay is fixed taking into consideration the non-ignorable part of pension as in the case of Commissioned Officers. As such these instructions do not apply to the applicants whose entire pension has to be ignored for the purpose of pay fixation in the re-employed post. There cannot be any doubt in this regard in view of the last sentence in this Para which reads as follows:
"In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed."
21 OA.No.170/00477/2017/CAT/Bangalore Bench Reduction of non-ignorable part of the pension from the pay would arise only in the case of Commissioned Officers.
16. In view of this position, it is clear that in cases where the pension is fully ignored, the initial pay on re-employment shall be fixed as per the entry pay in the revised pay structure of the re-employed post only and not on the basis of the last pay drawn by them in their earlier re-appointment. Thus, there is no basis at all for the applicants' contention that they are entitled for pay fixation on the basis of the last pay drawn by them in their previous service.
The Hyderabad Bench has also considered that certain Central Government organisations/Departments have taken a different interpretation and issued orders as requested by the applicants in this OA. Vide para-19 of the same order, they have covered that issue also which is as under:
19. The applicants have cited some instances of the respondent-
Organization/other Central Government Departments granting refixation of pay on the basis of the last pay drawn. Even if that be the case, when the respondents herein have acted in accordance with the existing instructions as laid down in OM dated 5.4.2010, we do not find justification for interference. Further, the law is well settled that even if an illegality has been committed somewhere, that cannot be a ground to give direction to perpetuate illegality. In Union of India v. Arul Mozhi Iniarasu (2011) 7 SCC
397), the Apex Court has observed that "It is trite law that there cannot be equality in illegality."
14. Similar view has been taken by this Tribunal in OA.No.1724/2015 vide order dtd.17.8.2017 wherein at para-14 it is held as follows:
14. When a person is getting pension and other perquisites for the past service rendered to the Indian Army even after being re-employed, they would not have any right to get any further advantage in the nature of higher salary or a higher pay scale. This Tribunal also held vide order dated 18.6.2014 in OA.No.1093/2013 and order dated 3.2.2017 in OA.No.414/2016 that when the military pension is ignored and the applicant continued to draw pension, his salary on reemployment shall have to be fixed as per entry level pay in the post to which they joined.
Therefore, even if the pay of the applicant is fixed under Rule 7 of the CCS(RP) Rules, it would not exceed the minimum of the pay in the revised pay structure. Had the applicant put on more service in the pre- revised pay scale and was drawing a basic pay which when multiplied by a factor of 1.86 would have exceeded than the minimum pay in the revised pay structure, then only his pay could have been fixed at a higher stage. But in the present case, even if theoretically the applicant's pay is fixed under Rule 7 of CCS(RP) Rule 2008, his basic pay will not exceed 22 OA.No.170/00477/2017/CAT/Bangalore Bench the minimum pay of direct recruits in the revised pay structure.
15. However, the applicant would urge that this Tribunal in OA.No.1093/2013 vide order dtd.18.6.2014 has considered a similar case and come to the conclusion vide para-3 as follows:
3. But then, the applicant relies on rule 3(V) of Railway Boards' order which mentioned on personnel/ officers who retired prior to 1.1.2006 and who have been re-employed after 1.1.2006, their pay on re-employment will be fixed by notionally arriving at their revised basic pay at the time or retirement as if they had retired under the revised pay structure. This will be done with reference to the fitment table of the Defence Service Rank/Civilian service post from which they had retired and the stage of basic pay at the time of their retirement. Their basic pay on re-employment will be fixed at the same stage as the notional last basic pay before retirement so arrived at. However, they shall be granted the grade pay of the re-employed post. The maximum basic pay cannot exceed the grade pay of the re-employed post plus pay in the pay band of Rs.67000 i.e., the maximum of the pay band PB-4. In all these cases, the non-ignorable part of the pension shall be reduced from the pay so fixed. Learned counsel for the respondents would say that this will be applicable only for Commissioned Officers and not for Non-Commissioned officers option and not below 55 years. The word used is personnel/officers. Therefore, it is clear that it will be applicable to both Commissioned as well as Non-Commissioned Officers .
16. The applicant would also urge that in the OM dtd.05.04.2010, the DOPT has handled only para-4 and therefore the rest of the paras relating to the Central Civil Services(Fixation of Pay of Re-employed Pensioners) Orders, 1986 will apply drawing specific attention to para-3.2(ix) which states as follows:
In the case of retired Defence Services Personnel of the rank of JCO, NCO, or OR in the Army and corresponding ranks in the Navy or Air Force, the items of emoluments mentioned below shall constitute pre- retirement pay.
ARMY (JCO, NCO or OR)
OLD PAY CODE NEW PAY CODE
Basic pay Pay (including deferred pay) and
rank pay.
Grade/trade/technical/ and rank
Corps pays
Good Service/Good conduct pay Increments of pay for length of
service.
23 OA.No.170/00477/2017/CAT/Bangalore Bench
Proficiency pay/ special Good Service pays
Proficiency pay
War Service increments Classification pay
Deferred pay,
Personal Allowance
( Ris/Sub.Major),
Extra Duty pays.
NAVY
Basic Pay, Pay (including deferred Pay)
Non-Substantive Pay Good Conduct pay.
War service Increments Higher Pt. II -Qualification pay
Good/Deferred Pay Classification Pay.
AIR FORCE
Basic Pay, Pay (including deferred pay)
Good Service/Good
Conduct pay.
Air Proficiency pays badge pay
War Service increments
Deferred pay. Classification pay.
(x) (a) In case of persons who retired before 1.1.1973 and were
reemployed after 1.1.73, the preretirement pay will be taken to be basic pay plus dearness pay plus dearness allowance and interim relief drawn at the time of retirement.
(b)In the case of persons who retired after 1.1.1973 on the pre-revised scale of pay, the preretirement pay will be taken to be the basic pay plus dearness allowance and interim relief drawn at the rates in force on 31.12.1972.
17. However, we also need to see that the fixation of pay to reemployed pensioners is covered by para-4 of that order wherein in para-4(b)(i), it is stated that in all cases where the pension is fully ignored, the intial pay on reemployment shall be fixed at the minimum of the scale of pay of the reemployed post and this, as we have seen, has been amended vide OM dtd.5.4.2010. Other than this point the issue of the last pay and the applicability of para-3.2(ix) would arise only if the entire pension and pensionary benefits are not ignored which is covered by para-4(b)(ii) of the 1986 24 OA.No.170/00477/2017/CAT/Bangalore Bench order which has specifically been amended by the OM dtd.5.4.2010. The respondents have also stated that taking note of the pension as well as the pay now fixed, the applicants are still getting more than what they got in the Armed forces and therefore, they should not have any grievances. To counter this, the applicants have cited several court cases relating to ignoring the amount paid as pension to look at the issue of hardship faced by the ex-serviceman and we find adequate force in the arguments of the applicants in this regard. The point of confusion that has arisen is mainly because of the use of the word 'personnel' in addition to officers in para-3(v) of the OM cited at Annexure-A7. Here we have to see whether the clarification issued under para-3(v) will supersede the revised provision of CCS(Fixation of Pay of Re-employed Pensioners) Orders and it can be straightaway decided that the amendment to the orders will take precedence over any clarification issued by the respondent organisations. The respondents would also urge that vide para-4(a) of the OM dtd.5.4.2010, it is very clearly stated that there shall be no protection of the scale of pay/pay structure of the post held by them prior to retirement. This can however be interpreted to state that this does not mean the last pay but only the scales of pay/pay structure etc., since these have been modified after the 6th pay commission recommendations. Therefore, we are unable to appreciate the contention of the applicants and as very clearly made out by the Hyderabad Bench, the rule position is not in favour of the case of the applicants and therefore, the OA is to be dismissed on that ground.
18. The only issue remaining would be whether the respondents are justified in suo- motu revision of the same citing the headquarters orders without even issuing a formal notice to the applicant vide DoPT OM dtd.6.2.2014 which vide para-3(ii) specifically states as follows:
25 OA.No.170/00477/2017/CAT/Bangalore Bench "In a case like this where the authorities decide to rectify an incorrect order, a show-cause notice may be issued to the concerned employee informing him of the decision to rectify the order which has resulted in the overpayment, and intention to recover such excess payments. Reasons for the decision should be clearly conveyed to enable the employee to represent against the same. Speaking orders may thereafter be passed after consideration of the representations, if any, made by the employee".
19. Apparently, the recovery process has not been commenced by the respondents and therefore, they shall issue notice as mandated by the OM dtd.6.2.2014 and take an appropriate decision in this regard. The OA is disposed of as above. No costs.
(C.V.SANKAR) (DR.K.B.SURESH)
MEMBER (A) MEMBER (J)
/ps/
26 OA.No.170/00477/2017/CAT/Bangalore Bench
Annexures referred to by the applicant in OA.No.170/00477/2017 Annexure-A1: True copy of the tabular statement depicting the details of the applicants Annexure-A2: True copies of the orders of appointment in the PF organisation as Social Security Assistants Annexure-A3: True copy of the orders/circulars issued by the IBA dtd.1.2.2014 Annexure-A4: True copy of the order granting pay protection/re-fixation benefits to the ex-servicemen Annexure-A5: True copies of the individual representations submitted by the applicants Annexure-A6: True copies of the pay fixation orders Annexure-A7: True copy of the circular dtd.5.4.2010 Annexure-A8: True copies of the office orders dtd.18.8.2017, 23.8.2017 and 24.8.2017 withdrawing the benefit of re-fixation of pay Annexure-A9: True copy of the 31st July 1986 order Annexure-A10: True copy of the DOPT OM dtd.6.2.2014 Annexures with MA.No.30/2017 filed by the applicants:
Annexure-A11: True copy of the interim order passed in OA.No.3453/2017 Annexure-A12: True copy of the order passed in OA.No.1093/2013 Annexures with reply statement:
Annexure-R1: DOPT OM dtd.4.7.2016 Annexure-R2: Communication dtd.26.7.2017 of R2 Annexure-R3: DOPT OM dtd.2.3.2016 Annexure-R4: Principal Controller of Defence Accounts circular dtd.12.5.2015 Annexures with rejoinder:
Annexure-A13: True copy of extract of relevant CCS Regulations Annexure-A14: True copy of the Defence service rank pay Annexure-A15: True copy of the OM dtd.11.11.2008 Annexure-A16: True copy of the CGDA letter dtd.15.2.1993 Annexure-A17: True copy of the reply from HO to RTI application Annexure-A18: True copy of the reply to ZAO, CBDT letter dtd.13.6.2017 Annexure-A19: True copy of the order dtd.22.7.2016 by Hon'ble Chennai Bench of CAT Annexure-A20: True copy of the letter dtd.13.7.2015 Annexure-A21: True copy of the DOPT note dtd.22.7.2015 Annexure-A22: True copy of the DOPT OM dtd.2.3.2016 Annexure-A23: True copy of the HO letter dtd.23.1.2018 Annexure-A24: True copy of the HO letter dtd.1.6.2012 Annexures with written arguments note filed by the respondents:
Annexure-1: Final order dtd.9.1.2018 in OA.No.37/2014 of Cat, Hyderabad Bench Annexure-2: Office copy letter dtd.11.9.2014 27 OA.No.170/00477/2017/CAT/Bangalore Bench Annexure-3: Office copy letter dtd.26.7.2017 Annexure-4: Form No.16 and its annexures of all parties Annexure-5: Relevant position of CCS(RP) Rules, 2008 Annexures with additional rejoinder:
Annexure-A26: True copies of the orders dtd.23.2.2016 passed by the ESI Annexures with written arguments note filed by the applicants:
-NIL-
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